Tennessee third degree burglary is not a violent felony under ACCA;
United States v. Caruthers is no longer controlling authority
In Cradler v. United States, the defendant was convicted of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced as an armed career criminal (ACCA) to 222 months imprisonment. He contended in a motion to vacate his sentence under 28 U.S.C. §2255 that two of his prior convictions were no longer violent felonies under the ACCA. The Sixth Circuit held that Mr. Cradler’s Tennessee conviction for third degree burglary conviction was not a violent felony under the ACCA.
The Sixth Circuit first rejected the government’s arguments that the §2255 motion was untimely and was procedurally defaulted. Since those defenses were not raised in the district court they were deemed forfeited when they were raised for the first time on appeal.
Turning to the merits, the Sixth Circuit noted that courts must use a categorical approach to determine if the burglary was the same type of “burglary” that is enumerated in the ACCA’s definition of a “violent felony.” (18 U.S.C. §924(e)(2)(B)(ii)). The categorical approach is an “elements-only” analysis in which the court compares the elements of Tennessee’s third degree burglary statute to the elements of the generic definition of burglary.
The Tennessee statute (Tennessee Code Annotated §39-904) is titled “Burglary in third degree – Safe cracking – Penalty.” The Sixth Circuit found that the statute’s first paragraph “contains a set of elements and a penalty scheme that are distinct from the set of elements and penalty scheme in the second paragraph.” Consequently, the statute is “divisible” which allows the court to use a modified approach and review certain documents connected to the case to determine the basis for the offender’s conviction. The indictment here alleged conduct that was contained in the first paragraph of the statute so the next step in the analysis was to compare that set of elements to the generic definition of burglary.
To determine whether Tennessee’s third degree burglary statute criminalizes more conduct than the generic definition of burglary, the court must determine “the full range of conduct that is encompassed by each statutory element.” The words of the statute alone are not enough to make that determination. Courts must consider case law from the state’s highest court.
A review of Tennessee case law and a comparison of the elements of third degree burglary to the generic definition of burglary led the Sixth Circuit to conclude that the first paragraph of Tennessee’s third degree burglary statute criminalizes more conduct than generic burglary. Thus, it does not qualify as the enumerated offense of “burglary” in 18 U.S.C. §924(e)(2)(B)(ii)) and is not a violent felony under the ACCA.
The Cradler panel recognized that it was previously held in United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006) that the first paragraph of Tennessee’s third degree burglary statute was a violent felony under the ACCA because it qualified as the enumerated offense of “burglary.” However, in light of Mathis v. United States, 136 S.Ct. 2243 (2016), the court in Cradler determined that Caruthers misapplied the modified approach by looking at the facts in the indictment and then comparing them to the elements of generic burglary instead of using the facts to determine which paragraph of Tennessee’s third degree burglary statute was at issue in the case. Therefore, Caruthers is no longer controlling authority in the Sixth Circuit.
In a concurring opinion, Judge Kethledge noted that use of the categorical approach was problematic here because the elements of the Tennessee statute seemed to describe only generic burglary but Tennessee case law, which bound the Sixth Circuit, construed the statute to encompass more than generic burglary. So at least in this case, the categorical approach did not lend itself to “accuracy and judicial efficiency.”